'Gronking to Remember' Lawsuit Reveals Some Shockers

Rob Gronkowski

A couple is suing Amazon and Apple after finding their faces on an e-book that went viral.

Amazon.com is telling a federal judge in Ohio to reject claims made by an anonymous couple who appeared on the cover of pseudonymous author Lacey Noonan's self-published erotic novella entitled AGronking toRemember, arguing that to deny it summary judgment would have a "deleterious effect on the free dissemination of information."

Before going to those arguments, though, there are a few big surprises in legal papers filed this month by Amazon and co-defendant Apple. Both companies allowed Noonan to sell through their platforms an e-book about a bored housewife who becomes greatly aroused upon seeing the way that New England Patriots tight end Rob Gronkowski emphatically spiked a football whenever he scored a touchdown. After Noonan did so, Gronking toRemember got widespread media attention and was mentioned on The Tonight Show, Jimmy Kimmel Live! and other television shows.

Shocker #1: The author of this erotica novella is a man. Even those reporters who did Q&As (here, here) with "Lacey Noonan" assumed the author was a she. According to Apple's papers, though, the book was written by Greg McKenna and if there's still any doubt, the computer giant identifies him as a "Mr."

Shocker #2: The New England Patriots did object when the book came out for sale this past January. According to Amazon's court papers, within days of release, a rep from the team and the estate of the late wife of Patriots owner Robert Kraft notified Amazon that the use of photographs of Gronkowski in uniform infringed the team's trademark rights. OK, this might not be that much of a shocker since there was some speculation the team was the cause of the e-book's removal. That's not true — Noonan submitted new versions of her cover without Gronkowski, the takedown would happen later because of the couple — but it could be something to worry about for HBO, which is about to debut a new TV series titled Ballers using the names and logos of NFL teams reportedly without the express consent of the league.

Shocker #3: Amazon says it runs computer programs when books are submitted to its Kindle store to assess whether there's any plagiarism or the text contains offensive materials such as written descriptions of bestiality. This one actually factors into the lawsuit.

The couple, suing as as "John Roe" and "Jane Roe," are asserting violations of their rights of publicity under Ohio law. The plaintiffs haven't identified how McKenna got their images, but do say they "did not place the photograph on the internet for expropriation" and that Apple, Amazon and Barnes & Noble should be held liable for allowing their image to be used in their e-book stores.

The lawsuit about self-publishing raises the issue of who is a publisher and who is a passive conduit of information protected by Section 230 of the Communication Decency Act.

The defendants defend themselves by saying they had not much to do with AGronking toRemember besides selling it.

Amazon tells the judge that authors are given guidelines and must expressly represent that they've obtained all necessary legal rights to publish a book. The e-retailer says it doesn't edit, fact-check or review an e-book's content besides automated checks for plagiarism and offensive material within the text. In sum, Amazon says "it did not know, and had no reason to know, of Noonan's alleged unauthorized use."

If Amazon has a system to identify bestiality inside a book, could it use facial recognition software to stop authors from using unauthorized images of real people on book covers? That's a question for another day. Here, the defendant describes the horrors of imposing liability on digital print-on-demand technology.

According to its brief, "If Amazon were to be denied summary judgment in the present case, (1) Amazon would be forced to closely examine every aspect of every book an author sought to self-publish through KDP and CreateSpace (and Audiobook Creation Exchange), (2) Amazon‟s costs would likely increase substantially, (3) the prices Amazon charges to its self-publishing customers could rise significantly, (4) some authors and independent publishers might no longer be able to afford to publish their works, and (5) Amazon would likely be inhibited from allowing authors to self-publish potentially controversial works."